Washington, DC – For decades, the conservative right in the United States has been campaigning to overturn the landmark 1973 Supreme Court ruling in Roe v Wade, which affirms a woman’s right to have an abortion.
The movement, embraced by the Republican Party and fuelled by evangelical Christians, has pushed to elect conservative legislators at the state and federal levels, and advanced the placement of conservative justices on the US Supreme Court. Now, the anti-abortion rights forces in the US are on the verge of a significant legal victory.
Next year, the Supreme Court – which has a conservative majority – appears poised to uphold a Mississippi law banning abortions after 15 weeks of pregnancy, overturning Roe and making a major philosophical break with the past rulings.
“The Constitution is neither pro-life, or pro-choice on the question of abortion,” Supreme Court Justice Brett Kavanaugh said during oral arguments on the constitutionality of Mississippi’s law. Instead, the Constitution “leaves the issue for the people of the states, or perhaps Congress, to resolve in the democratic process”, Kavanaugh said.
Appointed to the court in 2018 by then-President Donald Trump, Kavanaugh is one of the six justices who make up the new conservative majority on the nine-member court. His comments reflect the views of anti-abortion rights advocates who want the Supreme Court to get out of the business of telling people whether abortion must be legal, and let the states decide.
The prospect that the top court could reverse nearly 50 years of legal precedent, leading to new battles in US states over women’s rights, has abortion advocates deeply worried about the year ahead. US women are gearing up for a new, polarising, generational political battle.
Christian Nunes, president of the National Organization of Women, told Al Jazeera: “I am really concerned about where we are going to go, especially with how the courts are stacked right now.”
“Hearing the testimony of a majority of the justices on the court, it seems like they’re very much leaning toward overturning Roe. It’s very disheartening.”
Reversing Roe would affect millions of women across the US. According to research by the pro-choice Guttmacher Institute, nearly 40 million women of reproductive age (13 to 44) live in states with policies hostile towards abortion rights, while about 26 million live in states that have demonstrated support for abortion rights.
Twenty-six US states are “certain or likely” to ban abortion if Roe is overturned, the institute found.
“We continue to still be fighting for the same thing that we’ve been fighting for, for decades,” Nunes said. “We keep coming full circle back to the same thing of, women fighting for bodily autonomy, fighting for the right to make decisions for their own reproductive health and wellbeing.”
The outlook at the Supreme Court has given new impetus to federal legislation in the US Congress. In September, the US House of Representatives for the first time voted 218-211 to pass the Women’s Health Protection Act, which would safeguard the right to abortion from state bans and restrictions. But the bill is unlikely to advance in the Senate.
“We need to have one bill that would restore the Constitution’s protections of Roe,” Representative Judy Chu, a California Democrat who has introduced the pro-abortion rights legislation in every Congress since 2013, told Al Jazeera. “The threat is getting closer and closer.”
In the US Senate, the bill has 48 Democratic co-sponsors and the backing of President Joe Biden but a majority of Republicans – who hold 50 of 100 Senate seats – oppose it. Only two female Republican senators, Susan Collins and Lisa Murkowski, have expressed a willingness to consider the reproductive rights bill – not enough for it to clear the Senate’s 60-vote filibuster rule, which can endlessly delay legislation.
Even if it is clear the bill will not pass, Senate Majority Leader Chuck Schumer has committed to bringing it to a vote, which would force senators to go on record with support or opposition. This will give both sides a platform to campaign for, or against abortion rights in the upcoming November 2022 elections, with control of Congress at stake.
The Supreme Court is expected to issue a ruling in the Mississippi case in June 2022. Already, with Mississippi’s law under review, other states are moving forward with bans on abortion. Texas recently implemented a new and unusual “bounty-hunter” law that has effectively shut down abortion providers in the state.
“We want states to have the ability to pass laws that reflect the values of the people, to use the democratic process to achieve consensus,” said Mallory Quigley, vice president at Susan B Anthony List, a group that supports abortion restrictions.
A ‘deeply personal’ right
“Consensus certainly does not look like the current status quo that we have right now, which is effectively abortion-on-demand, up until the moment of birth,” Quigley told Al Jazeera.
If the Supreme Court overturns Roe, the decision would put abortion rights, taken for granted by generations of American women, at the forefront of the battle for Congress in 2022 and likely the White House in 2024. Thousands of women are expected to march on Washington, DC in January to demonstrate support for a woman’s right to choose.
“It’s honestly hard to overstate just how important the court’s abortion jurisprudence will be this term,” Elizabeth Wydra, president of the progressive Constitutional Accountability Center, told Al Jazeera in an email.
“The deeply personal right to make decisions about one’s own body and basic reproductive liberty are on the line.”